General Terms and Conditions of Business of We Make Them Wonder GmbH, Frankenthaler Str. 20A, 81539 München
1. Scope of application
The following Terms and Conditions of Business of We Make Them Wonder GmbH (referred to hereinafter as “WMTW”) shall apply exclusively. WMTW shall acknowledge any deviating terms and conditions of the customer only if WMTW has expressly consented to the applicability thereof in writing.
2. Conclusion of contract, scope of performance
2.1. All quotes by WMTW are non-binding.
2.2. A contract shall be deemed to have been concluded only following a written order confirmation by WMTW, whereby a simple e-mail shall suffice.
2.3. Amendments or supplements to the contract shall be effective only if confirmed in writing by WMTW, whereby a simple e-mail shall suffice.
2.4. The customer’s performance specifications in the order award shall, in the first instance, form the basis for the performance by WMTW. Should these be further specified (e.g. via functional specifications or a script), these more detailed service specifications shall form the basis for the performance.
2.5. Should the performance specifications be concretized or adjusted by WMTW, they shall be deemed approved if the customer does not inform WMTW of any change requests or comments in writing or electronic form (e.g. via e-mail) within one working week.
2.6. Within the scope of the requirements set forth by the customer, WMTW shall enjoy a certain degree of artistic freedom in respect of the performance.
2.7. To the extent that nothing to the contrary is agreed upon, the performance shall be rendered in three phases: conception phase, production phase and post-production phase. When one phase is completed, it shall form the basis for the next phase. Should the customer accept the results of one phase, he shall be entitled to request further adjustments to this extent only against separate remuneration.
2.7. WMTW shall be entitled to involve subcontractors/freelancers in order to render performance.
2.8. Should WMTW commission suppliers in the name and for the account of the customer, this shall be subject to written consent by the customer (e-mail shall suffice). To the extent that approved third-party services are commissioned by WMTW in the customer’s name, the customer shall indemnify WMTW against any and all liabilities arising herefrom.
2.9 General expenses for the set-up and maintenance of permanent business premises, for general business needs (stationery etc.), general postage and telephone charges, general personnel costs etc. shall be invoiced as a lump sum
2.10 WMTW shall not be obliged to present a quarterly report and/or work records.
2.11 Any use, exploitation, reproduction, dissemination or publication which exceeds the scope contractually agreed upon shall be subject to a fee and requires prior written consent by WMTW.
3. Customer’s co-operation obligations
3.1. To the extent that the customer provides WMTW with content (e.g. company and product information, photos, films, texts, data), the customer shall be responsible for the timely delivery and accuracy of said content, and ensure that any and all relevant rights of exploitation are granted.
3.2. To the extent that the customer makes services or contributory parties (e.g. his own personnel) available, the customer shall bear the costs in relation thereto, and shall ensure that said provision of resources takes place in full and in a timely manner; the customer shall also be responsible for the clarification of the rights of exploitation.
3.3. Should the customer not be entitled to the use of the contents and/or resources provided and/or rights of exploitation made available to WMTW, he shall indemnify WMTW in full against any and all claims for compensation asserted by third parties whose rights were violated hereby, and shall refund WTMW for the pertinent costs incurred for legal defense.
3.4. During all the phases (conception, production, post-production), the customer shall be obliged to cooperate to an appropriate degree, and shall inform WMTW of his change requests without delay with regard to specific development stages which are to be agreed upon (e.g. test-run, presentation, acceptance test).
3.5. Should the execution of the order be delayed on grounds for which the customer is responsible, WMTW shall, per week of delay, be entitled to charge 0.5% of the total remuneration as additional costs, however, no more than a total of 5% of the total remuneration as flat-rate additional costs. The customer shall be entitled to prove that lower costs were incurred. Further-reaching claims for compensation shall remain reserved. WMTW shall, following two fruitless requests for cooperation with set deadlines, also be entitled to charge an installment payment in the amount of the services rendered hitherto by WMTW.
4. Termination, lump-sum compensation
4.1. If the customer cancels an order already placed without WMTW bearing any responsibility therefor, or if the customer withdraws from an order already placed without justification, WMTW shall – the possibility of asserting higher remuneration or damages notwithstanding – be entitled to charge a lump sum amounting to 10% of the agreed remuneration as lump-sum compensation for the costs incurred for the processing of the order and for the loss of profit.
4.2. The customer shall retain the right to prove lower losses or lower remuneration.
5. Schedule, completion dates, acceptance
5.1. To the extent that nothing to the contrary has been explicitly provided for in writing, the schedule and completion dates shall be non-binding.
5.2. WMTW shall not be held liable for delays caused by customer documents being submitted late or if said documents are incomplete or not fully legible.
5.3. Should a performance period have been specified, said period shall be interrupted by the review of drafts, production samples, concepts etc. by the customer.
5.5. To the extent that performances are to be accepted by the customer, such acceptance shall take place without delay unless the said performances contain substantial defects. The operation or use of the delivered work and work products shall constitute acceptance with legally binding effect.
6. Change requests
6.1. Should the customer, during the execution of the order and by way of derogation from the scope of performance agreed upon, request additional performances which impact the remuneration and schedule, and should WMTW deem such performance to be reasonable, WMTW shall provide the customer with an amended quote. The customer shall take a decision in respect of the amended quote within five working days. If no agreement can be reached, the performance as originally agreed upon shall be rendered.
6.2. To the extent that additional performances are rendered by WMTW based on the customer’s request without WMTW being obliged to do so, these performances shall be invoiced by WMTW according to the agreed or customary daily rates on a time and material basis.
7.1. The prices quoted by WMTW are non-binding. They are net prices, exclusive of the statutory value-added tax that applies in each case. The exchange rate on the day of the quote shall apply.
7.2. If no remuneration has been explicitly agreed upon, the remuneration shall be calculated on a time and material basis at the respectively applicable hourly rates of WMTW for the
performance groups involved.
7.3. The remuneration shall include the performances and, as the case may be, the granting of rights of exploitation.
7.4. If travel expenses and ancillary costs as well as out-of-pocket expenses have not been taken into account in the quote, they shall be invoiced separately; upon request, the customer shall be provided with the relevant documentary proof.
7.5. Should subsequent amendments or supplements to the contract on the part of the customer result in higher costs (e.g. for production, dispatch, logistics, customs clearance) than planned, said additional costs shall be further invoiced to the customer. This shall also apply if the subsequent amendments or supplements to the contract results in a budget threshold being exceeded.
8. Terms of payment
8.1. To the extent that nothing to the contrary was agreed upon in writing, the invoices shall be due for payment net (excluding deductions) within 10 days of the invoice date.
8.2. After the order has been placed, WMTW shall be entitled to request an appropriate advance payment from the order amount, at least, however, 33% of the remuneration agreed upon. Should the customer default in payment of an installment invoice by more than ten days, WMTW shall be entitled to withdraw from the contract. Withdrawal is also permitted if the opening of insolvency proceedings in respect of the customer’s assets has been applied for.
8.3. In respect of the completed parts of an order, WMTW shall be entitled to issue interim invoices for the performances rendered. Should the customer default in the payment of an interim invoice by more than ten days, WMTW shall be entitled to withdraw from the contract.
8.4. Following the execution of the order and acceptance, WMTW shall issue a final invoice listing all the performances rendered, expenses and costs, as well as the payments on account already rendered. The invoice shall fall due for payment immediately without deductions and without the presentation of documentary proof.
8.5. The customer shall be entitled to offsetting only if his counter-claims have been determined with res judicata effect, are undisputed, and/or are acknowledged by WMTW. In addition, the customer shall be permitted to assert a right of retention only to the extent that his counter-claim is based on the same contractual relationship.
9. Retention obligation
9.1. Following the completion of the order, WMTW shall be free to surrender or return to the customer, store or destroy and/or delete any and all templates, drafts, working materials and other documents which it created itself or received from the customer. There shall be no obligation to surrender/return or destroy/delete the above-mentioned items.
9.2. Ownership of all raw materials arising during the film production and of all by-products resulting therefrom as well as of agreements/concepts/scripts set forth in writing shall remain with WMTW. To the extent that the raw material does not allow for any conclusions to be drawn in respect of the customer’s trademark, said raw material may be used by WMTW for other purposes (also subject to payment).
9.3. WMTW shall be liable for the light resistance and longevity of the images only within the scope of the warranty services provided by the manufacturer of the image material.
9.4. The dispatch and return of films, images and templates shall take place at the customer’s expense and risk. The customer shall be entitled to determine how and via which courier the above-mentioned items are to be returned.
10. Copyrights, rights of exploitation
10.1. To the extent that nothing to the contrary has been agreed upon in writing, the rights of exploitation in respect of the concepts, design work (incl. drafts etc.), films, animations and other creative performances rendered by WMTW (referred to hereinafter as “Work Products”) shall be granted to the customer only after the full payment of the remuneration agreed upon.
10.2. To the extent that nothing to the contrary has been agreed upon in writing, the customer shall be granted a simple, non-exclusive right of exploitation unrestricted in terms of time and geography for utilization in the type of use agreed upon.
10.3. Work Products may not be modified or edited in any other manner without the express consent or agreement of WMTW. Digital versions of Works Products shall – to the extent that they do not constitute the main performance of the contract – be surrendered only against separate remuneration and may be modified only subject to prior consent.
10.4. The customer shall, to the extent that this is customary in the industry, name WMTW on the reproductions of and during the release of the Work Products as well as when the Work Products are made accessible and displayed to the general public.
10.5. Proposals put forward by the customer or his employees shall not influence the amount of remuneration. They shall also not substantiate any joint copyright.
10.6. WMTW shall be entitled to use any Work Products and services rendered by it within the scope of its own advertising measures. Furthermore, WMTW shall, at its own expense, be entitled to make multiple copies of communication products, drafts etc. designed for the customer in any quantity, and to use the said material for the purposes of its own advertising measures. Moreover, WMTW shall be entitled to mention the activities performed for a customer within the scope of its own advertising measures or campaigns, or to publish them in the press.
10.7. Rights administered by GEMA and GVL, the composers as well as by the music publishing houses shall be excluded from the acquisition of rights on the part of the customer. The customer shall, however, obtain, at his own expense, the consent of the legitimate party (composer, music publisher, music publishing house) in respect of the intended use in the Work Product. Should the customer wish to make a registration, WMTW shall provide a music list with the billing information in line with the practices of the copyright collection agencies. Upon the customer’s request, WMTW shall assist the customer with the registration, subject to separate remuneration.
11.1. If the performances rendered by WMTW consist solely of consultancy services to the customer, the customer shall bear responsibility for its own use, exploitation and implementation of the consultancy results rendered by WMTW. WMTW shall not guarantee the success of its consultancy services.
11.2. The customer shall, without delay, check the performances rendered by WMTW and inform WMTW in written or electronic form of any discernible defects and/or of hidden defects after discovery thereof without delay. If a complaint is not lodged in good time, the performance shall be deemed approved.
11.3. To the extent that, in respect of purchase agreements, service contracts in which a specific result is agreed upon or contracts for labor and materials, there is a defect in the performances for which WMTW is responsible, WMTW shall be entitled, at its own discretion, to either rectify the defect or deliver a replacement.
11.4. WMTW does not guarantee the eligibility of its performances and work for protection and registration; it shall, however, ensure that the intended use by the customer does not violate third-party rights.
11.5. Any and all liability for the violation of third-party proprietary rights shall be excluded if proprietary rights which WMTW could not be aware of are asserted, or if contractual performances are not used in accordance with the contract and the breach of proprietary rights is caused by a modification which the customer himself has performed or has had performed by a third party.
11.6. WMTW shall not be held liable for content and Work Products supplied by the customer, as well as for performances and contributory parties made available by him and the exploitation thereof in relation to the performances rendered by WMTW.
11.7. Should WMTW harbor legal concerns in respect of the performances and/or contents requested by the customer, and should these, following notification of the concerns, nonetheless be executed at the request of the customer, WMTW shall not be liable for the legal admissibility of these performances. Should the customer request a legal assessment, this shall be remunerated separately.
11.8. The warranty period in respect of purchase agreements, service contracts in which a specific result is agreed upon or contracts for labor and materials shall, vis-à-vis entrepreneurs, amount to twelve months as of delivery and/or acceptance of the performance.
11.9. The liability for data loss shall be limited to the typical recovery expenses which would have been incurred for the regular creation of back-up copies in line with risk.
11.10. WMTW shall present the templates, drafts etc. created by it to the customer so that the latter is able to review the content-related information. Should the customer issue his approval in respect of the templates and/or drafts, he shall assume sole liability for the accuracy of the content-related information.
11.11. WMTW shall be held liable for damages – regardless of the legal grounds – within the scope of liability in tort in the event of willful intent and gross negligence. In the event of ordinary negligence, WMTW shall, subject to a more lenient standard of liability, be held liable in accordance with statutory provisions (e.g. for duty of care applicable to its own matters) only
1 in respect of losses resulting from injury to life, body or health,
2 in respect of losses arising from the significant violation of a material contractual obligation (obligation, the fulfillment of which allows for the proper performance of the contract in the first place and compliance with which the contractual partner ordinarily relies on and may rely on); in this case, the liability of WMTW shall, however, be limited to the compensation for the foreseeable damage which can typically be expected to occur.
11.12. To the extent that liability on the part of WMTW is excluded or limited, this shall also apply to its executive bodies, employees, representatives and vicarious agents.
12. Force majeure
12.1. WMTW shall not be held liable in respect of events of force majeure which substantially impede or hinder the contractual performance or render it impossible. Force majeure shall be deemed to be any and all unforeseeable and grave circumstances independent of the will and influence of the contracting parties, for which the contracting parties bear no responsibility, and which occur following the conclusion of this contract (in particular, natural catastrophes, official decisions, military conflicts, terror attacks, industrial unrest).
12.2. If either contracting party is hindered from fulfilling its contractual obligations due to force majeure, the contractual deadlines shall be extended according to the duration of the hindrance. This shall also apply if WMTW is reliant on advance performance by third parties and such performance is delayed due to force majeure.
12.3. If it is determined that the force majeure is to last longer than six months, both parties shall be entitled to a special right of termination.
13. Obligation of confidentiality
13.1. The customer shall, vis-à-vis third parties, undertake to maintain confidentiality in respect of any and all business and operating secrets of WMTW as well as of the companies affiliated to or that maintain a business relationship with WMTW, which become known to him, and not to publish the said secrets. This obligation of confidentiality shall apply beyond the term of the contract. This does not apply to information which is already known and to information which becomes known without any responsibility therefor on the part of the customer.
13.2. The customer shall ensure that a corresponding obligation of confidentiality is agreed upon with his employees and other vicarious agents as well as with third parties and third-party companies commissioned by him.
14. Final provisions
14.1. The place of jurisdiction shall be Munich.
14.2. In respect of business relationships and all legal relationships between WMTW and the customer, only the law of the Federal Republic of Germany shall apply under exclusion of the UN Convention on Contracts for the International Sale of Goods.
14.3. Should individual provisions of these General Terms and Conditions of Business be or become ineffective, the effectiveness of the remaining provisions shall not be affected hereby. The ineffective clause shall be replaced with an effective clause which comes closest to the economic intent and purpose of the ineffective clause.
As per: 17.09.2018